Some Further Thoughts/Questions About UT Fathers

This ties back to a thread that was ongoing before the Supreme Court decided the posthumous children case earlier this week. I don’t think I can really summarize the whole thread, so it will be easier if you poke around a bit. I’ve been thinking about the case involving John Wyatt.

Wyatt is the biological father of a child born to Emily Fahland. Though the child was born in Virginia, the child was adopted under Utah law by a Utah couple. As I’ve discussed in the past, UT law is remarkably hostile to single fathers–largely because of a (conservative, I think) preference for having children raised in married heterosexual families.

You can discuss UT law as a general policy preference, and I think you will find some of that in the earlier posts. But it’s also useful (and often more engaging) to examine how the law works in specific cases. This is why I’ve been following Wyatt’s case.

Wyatt’s case is very sympathetic, at least as far as you can tell from the sources drawn on so far. Of course, as is often–always?–the case, there is at least one other side to the story. If you go and look at the brief in opposition on the petition for certiorari in Wyatt’s case you’ll see this is true here, too. (I cannot post it–I think there are copyright issues. It is reported at 2012 WL 549275 for those who have access. ) I make no pretense that I know what facts are real–all I want to say at this moment is that we don’t actually know what is real. And this makes focussing too much on any single case a little risky.

But there’s a larger point I have been mulling over. As I said, Wyatt’s case seems to be a sympathetic one. That was also true in the case of Lehr v. Robertson, an older Supreme Court case I’ve discussed in the past, that many–me among them–find troubling.

Any time you face a troubling outcome in a case or a hypothetical it ought to lead you to examine the rule that leads to the outcome. So you can look at Wyatt and see it as an indicator that something is wrong with the system that UT has in place. But to figure out what is wrong (and perhaps more importantly, what a better system might look like) you have to think carefully about what facts about Wyatt’s case are most important. It’s not enough to be generally sympathetic.

Here it seems to me that it might be important to note that Wyatt (at least in his version of the facts) made some significant efforts to stay on top of things. (I won’t review the facts he asserts but you can read them in the petition for certiorari Wyatt filed.) Under these circumstances, if we assume that Wyatt should have had a case for notice, why is that? What would the right rule look like?

What struck me is this: Wyatt is a biological father of the child but his case is based on a great deal more than just claiming a genetic link. Thus, it’s perfectly possible to think that 1) genetic linkage isn’t determinative of legal parentage and 2) Wyatt should have a claim. And that is really consistent with what Lehr suggests–biology alone is not enough to give rise to legal parenthood.

Perhaps this was obvious to everyone all along, but I think I’ve been reading Wyatt’s case as though it were an assertion of rights based on genetic relationship. That’s sloppy thinking on my part. On reflection I don’t think that is a correct understanding of his claim. His claim is based on his conduct at least as much as it is based on biology. (I should note that any decent lawyer representing Wyatt would structure the argument this way–he has a stronger case than would a man who relied exclusively on genetic linkage. You’d surely want to argue from the sum of all the facts.)

And this leads me to a series of critical questions. If you think Wyatt is entitled to more notice/consideration than he received, what are the crucial facts on which you base that entitlement? Is it genetics alone? Is it genetics in conjunction with actions that Wyatt took? Which actions? Would a man who did less than Wyatt but claimed a genetic link be entitled to notice? How much less? Or would a man who did what Wyatt did but turned out to be mistaken about the genetic link be entitled to notice?

This matters because the goal in law isn’t just to resolve specific cases. It is to establish rules that will then govern other cases. That means you have to be able to formulate the rule and say something like “If a unmarried man [genetically related?] to a child does A, B and C, then he is entitled to participate in adoption proceedings.” What should the rule be here?

In thinking about all this I am reminded of the risks inherent in this sort of case specific reasoning. It’s easy to be moved by sympathetic facts, and perhaps too easy to therefore overlook the painstaking analysis of exactly which of those sympathetic facts is critical.

35 responses to “Some Further Thoughts/Questions About UT Fathers”

I general, I think laws in this area should be written that an ordinary citizen has a reasonable chance of following them if he is interested in his child. So I disagree with laws like Utah’s, which basically seem to set the father up to fail. It’s a bit hard to follow the law in a random state you’ve never had any reason to believe is involved if there’s no way of even finding out about it until the limited time period is long gone.

Now, if I ran the world, I’d probably make it be something like a biological father who steps forward to try and care for or have custody of the child within 30 days of birth, or within 30 days of learning of the child if he was a vicitm of fraud. I think the father should have time for the legal process but the child shouldn’t have to be in limbo forever if he can’t be found or is found, notified, and chooses to do nothing. I also believe all biological fathers should been notified of a potential adoption and what state’s laws are being used in that adoption so he can follow them.

It seems to me (and do correct me if you are wrong) that what you are saying is that a biological father should have some protected status simply because he is a biological father. He need to nothing more than demonstrate the genetic connection. If this were the law, what would it mean for men who are providing sperm to be used in third-party reproduction? They would have a genetic connection to the resulting child–would it entitle them to assert parental rights? The problem that arises (for me) is that if you say no to that then it seems that things turn on how the sperm gets to the egg–whether by intercourse or by syringe, basically. And that seems a very odd line to draw for something like parentage. Or at least, it does to me.

it may be that one just has to live with that and this could be an adequate answer. No legal system will be perfect and so perhaps this imperfection is a tolerable one?

great suggestion rebecca. as for Julie my opinion as to the role of genetics is that genetics is the default parent. However genetics alone is insufficient; poor conduct can disqualify the genetic parent. poor conduct includes demonstrating no interest in the child if given the opportunity. BUT, as the default, one must first have a reason to disqualify him before jumping to someone else.

I want to make sure that I understand the idea of genetics as the default. Suppose a single woman has sex with a man she does not know. She decides that she wants to raise the child alone. (This is so there is no one else who is seeking to take up the second parent spot.) Does she get to? Does she get to only if the man fails to demonstrate interest? Is she obliged to tell him or does not paying enough attention to find out that she is pregnant count as not demonstrating enough interest? It seems to me that as you’ve set it up he probably ought to have some right to notice in order to demonstrate interest before he is disqualified, but I’m not sure.

If she doesn’t know who the man is, the point is moot. But generally she does know who he is, and what’s more, he also knows who he is. at least thats the case in the cases you’ve raised.
If the woman lies on the adoption forms and says that the father is unknown, and is later found out to have lied, she should be liable for fraud. The only way the fraud can be discovered is, of course if the father did already know who he was, or if she herself discloses it to him afterwards. So the spectre of forcing a woman to acknowledge herself to a violent man is unlikely.

I meant to ask about a case where the woman wants to raise the child as a single mother. Does she have to track down the guy and tell him the child exists? Obviously she can try to do this if she wants to, say for child support. But suppose she does not want to–she would rather give up child support and raise the child on her own, without interference. Does she have to tell him? Is it enough that a man paying attention ought to know? Can she move across the country without telling him? Does it matter if she is moving to be near other family members or in an effort to avoid him?

All of this goes to what sort of rights he has simply by virtue of the genetic relationship with the expected child.

I don’t think the law should force her to tell anybody anything. So as long as he remains unknown, the law can not acknowledge him as a father of course. This does not mean that she is absolved of an ethical obligation to notifiy him. (Assuming there is not a concern of violence or abuse).

Ki
Everyone is so worried about what she has the right to do…what about the kid having a right to the support of both his parents? Your suggesting that she is somehow empowered to say the child has no other parent and waive the child’s right to support. Maybe I think that space should always be left blank and open should the father ever surface and she should never be allowed to have a second parent adoption unless the real father is identified and agrees.

as long as we have no clue who the father is we do not know whether it is to the child’s benefit to have him acknowledged as such. government is there to provide assistance when requested, otherwise to butt out.

“as long as we have no clue who the father is we do not know whether it is to the child’s benefit to have him acknowledged as such. government is there to provide assistance when requested, otherwise to butt out.”

Ki – it is to the child’s best interests until proven otherwise. Good grief. Heard of innocent until proven guilty. Let me tell you what these policies have done to families….Has it occurred to you that women hide their pregnancies from men because they just don’t happen to want to be with him anymore? What if he cheated on her….that does not mean he’s not fit to take care of his kid but it makes her mad enough to withhold information that she’s pregnant. Maybe pin it on another man because she was cheating too. I have helped fathers who were away at war….one more time AWAY AT WAR GETTING SHOT AT while their girlfriends were giving birth to their kids and naming other men as fathers. Can you imagine returning from WAR Kisarita and finding out you had no freaking right to take care of you own son or daughter? No right to know where they were or if they were ok? Nobody would help you find them? Can you imagine your baby being stolen away and how much anguish you’d be in?

I cannot believe that you’d say until we know if he benefits the kid…of course his fatherhood benefits the kid – its the truth. The truth benefits the kid. I’m blown away.

the only time that occurs is in cases of cheating (whether married or not) and that is much rarer than the media likes to make out. of course in cases of cheating the woman wouldn’t actually be sure.
My dear friend was the product of an extramarital affair and while it tortures him I don’t think he believes his mother should have been forced to disclose to the government.

It seems to me that Marilynn’s comment here gets to the core question. Does the child have a right to the support of both parents? And does parents in that sentence necessarily mean “genetic parents?” I assume for Marilynn it does, in which case I think the answer is “no.”

The law doesn’t generally create a right of support from genetic parents. As regular readers would know, there’s this complicated patchwork of laws about who is a parent and hence, who has a legal obligation to support a child. (Or to say it the other way around, who a child has a right to expect support from.)

If instead the question is “does a child have a right to the support of legal parents (however many of them there are)?” then the answer is “yes.” Legal parents are, by definition, the people who are obliged to support the child.

Thus we are back to the fundamental question of how you determine who legal parents are. There do not have to be two legal parents. There can be one (or three, come to that) as well. By contrast, of cousre, there are always only two biological parents.

Yes but Julie how do you explain the fact that when a child has just the one legal parent (the woman who gave birth) and no legal father, the child under the UPA has a right to his or her father’s support anyway and States will go looking for him (the father) and will test all sorts of likely suspects in order to find that genetically related father because the child has a right to his support purely based on genetic relatedness even though he is not yet named as the legal father? If he is hiding out States are suppose to test his relatives in order to confirm he is the father. The genetic relationship alone all by itself makes him the father of his child and owes that child support that child has a right to both parents support even if they are not married and even if either one or both has not been tagged as a legal parent yet. They will owe support in arrears too back to the time before they were found and made a legal parent. So how can you say that children are not entitled to their genetic parent’s support?

Replying to Kisarita through your post
Ki my experience has been based on people wanting to find their children or parents it is an isolated subgroup but I can tell you I have helped lots of fathers who lost kids to unscrupulous women and their new boyfriends and husbands when they went off to Vietnam to fight. Also under many other just general break up situations where the mother and her family simply blocked contact and made it impossible for him to see her or the baby and without financial resources for an attorney and only 17 or 18 years old they simply got locked out and then their mothers just rewrote history with whatever guy was around at the moment creating a fictive kinship for the children that last a lifetime even though their romantic relationships did not and all the while their father and his family would love to have been there. The smart ones always kept the same phone number and kept their names in the phone book in case their child ever wanted to find them. Women can be real ruthless heartless self centered brats when it comes to cutting men off from their kids and reassigning the title of father to their current man as if something like that can simply be transferred over. In one instance someone I know is involved with a 1st cousin because of it and its gross and they feel like they should get out but they are already in love – eww. They should not have kids though…we’ll see.

bottom line is that if any child has a right to support from both genetic parents then all should, and if they don’t…right there is your unequal treatment under the law and the reason the law needs to be corrected.

All or none. If you want to say no child has the right to his or her genetic parent’s financial support then stop every paternity suit in its tracks seek out not another man for paternity testing. Forget it. Genetics should no longer be the basis for any orders of support

That would be lame as hell but at least you would be treating all children equally and letting all genetic fathers equally off the hook. But then of course you’d have the problem of unequal treatment for women where genetically related women would be on the hook for child support for their offspring and genetically related men would not. Rather sexist. Or would you just say that women who give birth would be on the hook for child support, then women who hired surrogates to carry their genetically related offspring would not have a duty support unless what? Unless they adopted their own child? That is how you’d do it the surrogate would have the obligation to support but not the woman whose embryo she carried and delivered? K

Good luck with all that. Places a pretty big burden on women all alone.

I agree in theory with both posts above with a caveat…
There has to be a limitation of time in the best interests of the child even with fraud. That time limit should be determined by experts based on harm

vs benefit to the child while also great enough so that adoption agencies are forced to make a documented effor to notify the father in person so that adopting parents are willing to take that risk. The mother should also be mandated by law to reveal the name or names of the potential fathers.

When I first started exploring Utah law I was appalled trying to figure out what had to be done. Not only was the fathers putative registry hard to find it was called something else. Then to find out a pleading of paternity along with a detailed parenting plan had to be filed in court. That is so far from reasonable for even a Utah resident let alone an out of state father – all within the timeline that has been set. It is not reasonable.

The reasonable way would be to have a federal fathers putative registry that all state adoption laws must recognise and have standard timelines as well.

Well, if you use that argument (visitation only if it’s best for the child, even if the parent is a legal parent under the hypothetical law) then by that logic other people shouldn’t have visitation either if it’s not best for the child – like in the case with the lesbian partners in Vermont, where you could certainly make an argument under that line of reasoning that it wasn’t best for the child to remove custody from the biological mother who raised her since birth because of denied visitation with someone the child didn’t have either a biological or emotional connection with, since she only saw her two or three times since she was an infant.

Yes–this is a critical observation. There really are different ways to approach this. You can say that the parent does have rights too, so BIC isn’t the touchstone, but just part of the analysis. You can say that in the vast majority of the cases it is better for the child and so we have a general rule and it doesn’t work out in a few cases, but that’s the price you pay for an easy to apply general rule. You can pick the parent who will most readily accomodate visitation with the other parent.

But in any event you are right to observe that if you raise the question here you can/should raise it generally.

And after looking up that case again, it seems the outcome was quite bad for that specific child, who is apparently being hidden somewhere by the biological mother in South America. I can’t help but think it would be better if the custody had never been ordered changed in the first place.

Why do you always assume its bad for the child Julie? How about we use existing law to prove that he is unfit before taking away the child’s right to contact with him and the rest of his family and before taking away his right to support from the father. He should have to be a very very bad and violent man to not be allowed to see his kid. Even then they do supervised visitation. Yes we assume the child’s right to contact with his father and father’s family trumps the mother’s desires to be a selfish self centered btch with a God complex.
Maybe you have not met a lot of people whose mothers did this to them but I have. Their mothers were judge jury and executioner. They rewrote history falsified documents and destroyed their connection to their fathers family because the mother did not like him anymore. Its wrong Julie. Most of them never went to court to do a step parent adoption. It does not matter how much they love their step fathers it was not necessary to play games in order for them to be raised by him they could have had both a step father and a father if the central point of importance to their mom’s was them the kid instead of her relationship dujuor.

I don’t mean to assume it is always bad for the child. I’m not totally sure What the “it” is here, but in general I don’t make assumptions that things are always good or always bad. I’m going take a rather long way round to this point.

If I take a step back for a moment, there are two ways one might go about dealing with issues around kids and parents. One way is to individually determine what is best for each child. So that might mean a hearing for each child right around birth about who should be the parents of this particular child with no general rules–just the focus on this one child.

No one seriously thinks we can do this. Mostly it is just not practical and would be incredibly expensive. And of cousre, the decisions would only be as good as the decision makers.

So the alternative is to have some set of general rules that apply. This is in essence what we do. The truth is, these rules will never work perfectly. There will always be hard cases where the rules yield a bad outcome. You can make the rules pretty complicated and nuanced in order to minimize the number of bad outcomes, but you cannot make them work perfectly.

For instance, the rule that a husband is presumed to be the legal parent of a wife’s child works pretty well. Most of the time it confirms the actual configuration of the child’s family and puts the legal bonds in the right places. Most of the time it also matches up to biology and to the intention of the parties. It saves huge amounts of time and money. However, there will be cases where it isn’t what is intended and it doesn’t reflect the configuration of the child’s actual social family. Many states have therefore written in various exceptions to the general rule–about who can rebut presumptions, etc. It still won’t work perfectly and it is more complicated.

So I think about situations where an unmarried woman is pregnant, where she doesn’t want to be married to the man who is genetically related to the child, where she doesn’t want to have anything to do with him anymore, where she wants to raise the child on her own. Is the better general rule one that forces her to coparent with the man or one that does not do that? I pick the latter. You pick the former. Each of us has to acknowledge, I think, that there will be instances where our chosen rule won’t lead to a particularly palatable outcome, but neither of us can claim that the other person’s rule is always going to come out wrong, either.

Nah I can prove that your way would always be wrong because the mother is severing the child’s right to support from his or her father. Remember the support is not for her the mother, but for the child and she is merely the child’s representative supposedly acting in the child’s best interests. How could it possibly be in the child’s best interests not to receive financial support from his or her father? Even if she does not particularly like him what difference should that make in terms of his obligation to support? If he is a very bad man she can get a restraining order and the child can still receive financial support from him. How could it possibly be in the child’s best interests to be flying blind when dating unaware of who his or her siblings and cousins aunts uncles and even father is? Is that fair to the child and is that fair to all those people to withhold information that is critical if they want to avoid being the cause of disease and illness in their own family and community? Come on. The only thing you have where my senario is bad for the kid is if the father is somehow bad and abusive and should not be around the child and to that I’d say restraining order and still the benefit of avoiding incest and inbreeding and the benefit of ongoing shared medical information with the rest of the family if they were willing. You won’t even know if they are willing in your senario.

I don’t mean to dispute anything you say here about what would be reasonable, but what does it tell us that the UT law is apparently the result of proper legisltative process in UT? I mean, the UT legislature enacted these laws. They’ve gotten a fair degree of publicity. There doesn’t seem to be a groundswell of opinion that the law must be changed. I suppose what that means is that most people think that unmarried men have no particular rights to be fathers. If they want to be fathers they should get married first and then have kids. Or they should marry the woman who has gotten pregnant. A slightly different way of thinking about the issues raised here is to ask whether the people in a state are allowed to make this judgment. I mean, I might not like it, but there’s a lot I don’t like about Utah law. States can make different laws reflecting different values and priorities, so long as they stay within the range allowed by the Constitution.

Which isn’t to disupte your point about what other things might be reasonable.

I have to say that the application of UT law to all these non-UT men does seem problematic. But I have trouble figuring out how to avoid it. It seems to me that a woman–even if she is pregnant–has to have the right to go where she wants to go. And so suppose she wants to relocate to UT? Then if the child is born in UT (I know that is not so in the Wyatt case, but I’m thinking generally) probably UT law ought to govern adoption and all that. And UT law tells you who has to get notice of what–and we know where that leads.

Perhaps the question is whether you can require a pregnant woman to give notice before she leaves the state where she started. This makes me a little uneasy, I have to say, so I’d need to think it through.

This is rather a large question and probably the subject of 25% of the blog.

Legal recognition of parents is meant (these days) to serve the well-being of children. (This hasn’t always been so. I think in the past it has often been defined in ways that assured the smooth operation of propertied elements of society. That’s why illegitimate children had no legal fathers, I think.)

So the law is as it is because (in the view of legislators and judges) using biology as the sole determinant of legal parentage doesn’t serve the purpose of ensuring the well-being of children. To offer one example–if a person takes a child into his/her (in the modern formulation, “her” is included–traditionally only “his”) and holds the child out has his/hers for two years, it’s not generally beneficial to move him/her asideas a legal parent in favor of some late-appearing biologically related person. So the UPA doesn’t go with biology in this instance.

I know you disagree and don’t like this, but I won’t go on about it right here since it’s been so much the focus of many posts. It will be back in the main topics soon enough, I’m sure.

What if I said you were right to maybe not remove the child from the care and custody of the person that has been providing it but I said that care did not eliminate the obligations of the biological parent if they ever surface, nor should it eliminate the recognition of kinship relationships on that side of the child’s family? Like for instance now that she knows all her cousins she won’t be able to legally get married to them same for siblings aunts uncles nieces nephews grandparents and a father we will call donor or estranged or just late for work.
Also just because he’s late showing up should not mean she has no right to inherit from him or no right to be treated as his child for the purpose of disbursement of death benefits. Maybe the person who has had custody all that time is appointed legal guardian and the father has visitation but no legal custody because its best for the child to stay where he or she is. The child would still be entitled to the guardian’s social security death benefits because the child would be considered a qualifying dependent if they are indeed that child’s legal guardian at the time of death.

All sorts of perfectly logical ways to skin a cat without saying our late showing up guy is not a father and has no obligations. Your short changing the kid by not trying to make it work in a way that the child gets what other kids are entitled to.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.